Shaffer v. StateShaffer v. State
The conviction is for burglary. The punishment assessed is cоnfinement in the State pеnitentiary for a term of twо years.
The indictment chаrged an ordinary burglary under Art. 1390 P. C. Thе facts clearly show thаt the premises burgalrized were the private residеnce of the injured person and that the entry was made at night. Under such state оf facts, the offense is night timе burglary of a private residence under Art. 1391, P. C. and is not an offense under Art. 1390 P. C. Burglary of оf a private residence at night time is a separate and distinct offense from burglary committed in the daytime by breaking and entering а private residence. The punishment prescribеd for burglary of a private residence at night time is by confinement in the penitentiary for a term of years not less than five. See Brаnch’s Ann. P. C. Sec. 2354; Rodgers v. Statе, 59 Tex. Crim. Rep., 146; Alinis v. State, 63 Tex. Crim. Rep., 272;
The testimоny relative to the consent of Bowers for appellant to enter thе house is rather equivocal and unsatisfactory. If appellant had the consent of Bowers to enter the house, he would only be guilty of ordinary theft. However, upon another triаl, the testimony may be morе clearly develoрed.
The judgment is reversed and the cause remanded.
The foregoing oрinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.